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The Lounani case: when
can a member of a terrorist group be excluded from refugee status?

A
person applying for protection under the 1951 Refugee Convention can be
excluded from its provisions under certain circumstances.

As
the Court of Justice of the European Union explained in B and
D
in 2010, these circumstances include those guilty of committing terrorist
attacks.

The background facts

Mr
Lounani left Morocco in 1991. He travelled to Germany where he submitted an
application for asylum which was rejected. He then travelled to Belgium. He has
resided illegally there since 1997.

The legal framework

The
first port of call is the Refugee Convention itself. Article 1F states that:

·The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that:

·…. (b). he has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee;

·(c). he has been guilty of acts contrary to the purposes and
principles of the United Nations.

The questions before the Court

How,
then, to treat Mr Lounani’s criminal offences and membership of MICG in
relation to the exclusion clauses? The Court addressed three questions.

The
first: must Article 12(2)(c) be interpreted so that exclusion under that
provision of an applicant for international protection can only follow that
applicant’s conviction for an article 1(1) Framework Decision offence(s)?

The Court’s judgment

The
Court of Justice considered the exclusion clauses in light of the Geneva
Convention and a number of UN Security Council resolutions. The Court also
described the Geneva Convention as the “cornerstone of the international legal
regime for the protection of refugees.”

There
is no textual reference made to the Framework Decision in the Qualification
Directive, even though the former predates the latter.

Factors for individual assessment

The
Court went on to agree with AG Sharpston that individual assessment is required
in each case. The Court outlined a number of factors to be taken into
consideration when performing such an assessment.

The
Court observed that the terrorist group of which Mr Lounani was a member of the
leadership operated internationally. The MICG was also registered on a United
Nations list which identifies persons and entities that are subject to
sanctions.

How does Lounani sit with English law?

The
Supreme Court considered the application of exclusion clauses in R (on the
application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010]
UKSC 15.

Looking ahead

It
is clear that Lounani has expanded the scope of the exclusion clauses in EU
law. Those who help terrorist organisations in ways beyond participation or
planning of terrorist attacks can now clearly be excluded from international
protection.

The
references in the judgment to UNSC Resolutions are also important. It may be
that a decision-maker seeking to exclude an applicant for international
protection is now entitled to rely on the similarity between that applicant’s
conduct and measures that the UNSC recommends that states combat.